The Inside Scoop, with a Partisan Twist

Orin Kerr at The Volokh Conspiracy posts about an article in the latest issue of Vanity Fair (not available online), in which a group of law clerks who worked on Bush v. Gore give their take on the case. The article, undoubtedly timed to influence this year's election, "includes considerable speculation as to the improper motives of the Justices who voted" in the majority to stop the Florida recount.

And precisely whose law clerks does the article cite? Kerr describes them as "most" of the clerks who worked for the four Justices in the dissent and the "occasional" clerk who worked for one of the Justices in the majority." He adds:

The article acknowledges that the clerks' story is rather skewed, but justifies publishing it on the ground that it's better than nothing: "[I]f this account may at times be lopsided, partisan, speculative, and incomplete," the article states, "it's by far the best and most informative we have."

Did the clerks violate confidentiality? Kerr seems to think so:

Then there is the question of law clerk confidentiality. The clerks who spoke to Vanity Fair apparently viewed their duty of confidentiality to the Court as subject to waiver when in their judgment the Court has gone badly astray:

To the inevitable charges that they broke their vow of confidentiality, the clerks [who spoke to Vanity Fair] have a ready response: by taking on Bush v. Gore and deciding the case as it did, the Court broke its promise to them. "We feel that something illegitimate was done with the Court's power, and such an extraordinary situation justifies breaking an obligation we'd otherwise honor," one clerk says.

Hmmm. Sounds pretty flimsy to me, for obvious reasons.

The obvious reasons are that most of the clerks cited in the article were on the losing side and they're sore losers with a partisan axe to grind.

Will we hear from the clerks who worked for the majority in Bush v. Gore, or will they respect their vow of confidentiality?